Proprietary Protection of Genetically Modified Plants for Economic & Societal Advancement
The practice of plant biotechnology dates back to several thousand years ago when people inadvertently altered the genomic layout of plant species through the selection of desirable traits in organisms such as yeasts and bacteria (Agrios, 2005). Recent advancements in plant biotechnology such as CRISPR and genetically modified plants have given rise to new methods of control and manipulation over genetic material (Kline, 2020). The significance of this discussion lies not only in scale, but also in the level of impact. Biotechnology has been called the solution to some of the world’s biggest problems such as global warming, starvation, and overpopulation (Nee, 2005). Plant biotechnology companies strive towards the improvement of condition, production, and harvesting characteristics of basic commodities. The production of food relies on a long and multi-faceted train of processes with plant biotechnology at the forefront. For this reason, much debate has broken out over whether legal protection of intellectual property should even be provided for basic commodities of research and invention.
In the United States, legal protection over plant biotechnology innovations can be acquired through the Plant Variety Protection Act of 1970, Plant Patent Act of 1930, or various subcategories of a utility patent (Pardey et al., 2013). The question of whether plant biotechnology should have rights to intellectual property protection is geared towards its overall impact on research, agriculture, and the monopolization of big companies. This review examines the arguments in favor and against the intellectual ownership rights in plant biotechnology. The structure of logic will adhere to the intention of support towards proprietary protection of genetically modified plants in that it is a critical component in both economic and societal advancement.
There are two main arguments made that support efforts to impose restrictions on patent eligibility for plant innovations. The first is the concern that increased patent activity will negatively impact the farmer due to monopolization of agriculture and implications resulting (Klein, 2020). This argument suggests that an increase in patent protection over genetic material will cause an increase in privatization over natural products, ultimately leading to the inaccessibility of natural resources necessary for the production of food. A famous case in support of these concerns is that of Monsanto Canada Inc v Schmeiser. In this Supreme Court of Canada case, Monsanto sued a farmer for replanting saved soybeans containing the company’s genetically modified pollen. The crop field had been contaminated years ago by Monsanto’s patented genes, but the Supreme Court still ruled in Monsanto’s favor. Schmeiser was omitted from having to pay a fee for using Monsanto’s “technology”, because he did not use the seeds commercially or in any other way that could benefit him (Deutsche, 2018).
Despite the reasonable doubts that arise when a large company is given restricted control over a living organism’s DNA, there is a positive light that emerges from the Monsanto Canada Inc v Schmeiser case. This case paved the way for a new rationale that supported plants as patentable inventions. Additionally, many argue that monopolization leads to the inflation of a highly-sought after product. This is true initially, however, patents are not permanent and have a timeline. In fact, in 2010, Monsanto’s Roundup Ready technology was released to the public and can now be found anywhere in stores and in generic forms.
Furthermore, the monopolization of Monsanto as a biotechnology research company has aided in the development of major tools in science and agriculture such as the Roundup Ready technology and its revolutionary application in the genetic modification of plants (Janis, 2001). Not only are these contributions of great significance, but the compensation provided to the company for these patented inventions has supported Monsanto in funding many universities involved in related research.
Critics of GMO patents claim that this type of patent will hinder research in an important are of science by legally restricting professional exploration related to the patented innovation. In an article from The Washington Post, Jim Myers, a professor of vegetable breeding and genetics at Oregon State University, says, “patents, or patent disputes, sometimes lock up the building blocks of plants that used to be freely available to scientists” (Haspel, 2014). The example given in this article was reduced access to germplasm. Although there has been some agreement amongst plant breeders that access to germplasm has potentially declined, there is not a scientific way to verify that farmers are not obtaining the seeds they want.
Arguments for the impediment of patents on research opportunity also make the claim of “tragedy of the anti-commons”; as in the notion that with increased patenting for increased numbers of owners, research attempts will not succeed due to the inability to acquire necessary research inputs (Raidt, 2014). Although there is concern surrounding the necessity of law to evolve quicker with the necessities of biotechnology, research has not been halted. In fact, a study was conducted by Cohen and Walsh to see if there was a correlation between the increase in patents per innovation and research impact. Research stakeholders reported the effect of accessibility to IP rights to research tools was close to nothing (Cohen et al., 2003).
Support of patents and their role in furthering economic and societal growth is derived from factors of the legal system that ensues attainment of these goals. Plant utility patents serve as the pivotal point for igniting progress, boosting industrial income through protection that encourages new research investment, and rapid dissemination of information outlining the new technology that results (William, 1986). The fundamental establishment of intellectual property rights was to advance scientific development. Support for these legal protections is noted in Article 1, Section 8 of the U.S. Constitution in that it grants the power to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries (U.S. Const. amend. XIX).
Plant biotechnology progress is advanced through a utility patent in three ways: it protects the ideas of the investor, assures compensation for large amounts of time and money spent on research, and secures growth through public disclosure of new technologies.
The amount of research put into each new plant biotechnology invention is extensive. In McDougall’s study, The cost and time involved in the discovery development and authorization of a new plant, a biotechnology derived trait introduced between 2008-2012 costed $138 million to research and develop (McDougal, 2011). Utility patent protection for plants are absolutely necessary to recover the high costs of research and development. Utility patents replenish the costs of research through protection of commercial rights, protection to investors, and temporary removal of competition. The biotechnology products and tools stemming from these patents puts a large portion of the investment back into the economy. According to the report made by Grand View Research, Inc, the global plant biotechnology equipment market size is estimated to reach USD 18.35 billion by 2025. Another positive relationship is the revenue generated from patented goods from plant biotechnology companies can be reinvested into further research for better equipment used in the field.
Alongside this thoroughly enforced maintenance of economic benefit, the advancement of plant biotechnology is universally relevant. Recent biotechnology developments have developed breakthroughs in science that save, improve, and extend human life. Take biotech crops as an example of how impactful this field is through direct and indirect forces. Biotech crops reduce the environmental impact of agriculture production, thereby increasing global food security, and diminishing the need for increased land clearance (Mackey, 2003).
Despite the critical role patents play in securing the intellectual right and advancements of plant biotechnology, the patent process itself is difficult due to complexities surrounding the ownership over “life” and the incongruences that exist between the paces of transformation in law and science. Even with these complications, it would be of great benefit to the world to develop a legal system that evolves alongside biotechnological innovations to enable further advancements of plant biotechnology and ultimately the state of our planet.
Arora, Ashish, Wesley M. Cohen & John P. Walsh. “Working Through the Patent Problem.” Science (February 14, 2003),Vol. 299. <http://www.sciencemag.org/ content/299/5609/1021.summary>.
Deutsche, Welle. “Patents on Plants: Is the Sellout of Genes a Threat to Farmers and Global Food Security?: DW: 03.09.2019.” DW.COM, www.dw.com/en/patents-on-plants-is-the-sellout-of-genes-a-threat-to-farmers-and-global-food-security/a-49906072.
GEORGE N. AGRIOS, chapter one – INTRODUCTION, Editor(s): GEORGE N. AGRIOS, Plant Pathology (Fifth Edition), Academic Press, 2005, Pages 3-75, ISBN 9780120445653, https://doi.org/10.1016/B978-0-08-047378-9.50007-5. (http://www.sciencedirect.com/science/article/pii/B9780080473789500075)
Giugni, D., & Giugni, V. (2010). Intellectual property: a powerful tool to develop biotech research. Microbial biotechnology, 3(5), 493-506.
Haspel, T. (2014, September 29). Unearthed: Are patents the problem? Retrieved October 13, 2020, from https://www.washingtonpost.com/lifestyle/food/unearthed-are-patents-the-problem/2014/09/28/9bd5ca90-4440-11e4-9a15-137aa0153527_story.html
Hettinger, N. (1994). Patenting life: Biotechnology, intellectual property, and environmental ethics. BC Envtl. Aff. L. Rev., 22, 267.
Janis, Mark D. (2001) “Sustainable Agriculture, Patent Rights, and Plant Innovation,” Indiana Journal of Global Legal Studies: Vol. 9 : Iss. 1 , Article 6. Available at: https://www.repository.law.indiana.edu/ijgls/vol9/iss1/6
Klein, Carly. “The Complications Around Patenting Biotechnology.” Labiotech.eu, 5 Oct. 2020, www.labiotech.eu/in-depth/biotechnology-patents-intellectual-property/.
Lesser, W. (1987). The Impacts of Seed Patents. North Central Journal of Agricultural Economics, 9(1), 37-48. doi:10.2307/1349340
Maureen A. Mackey, The Developing World Benefits from Plant Biotechnology, Journal of Nutrition Education and Behavior, Volume 35, Issue 4, 2003, Pages 210-214, SSN 1499 4046, https://doi.org/10.1016/S1499-4046(06)60336-9. (http://www.sciencedirect.com/science/article/pii/S1499404606603369)
Max S. Oppenheimer, The “Reasonable Plant” Test: When Progress Outruns the Constitution, 9 Minn. J.L. Sci. & Tech. 417 (2008). Available at: https://scholarship.law.umn.edu/mjlst/vol9/iss2/3
McDougall, P. (2011) The Cost and Time Involved in the Discovery, Development and Authorisation of a New Plant Biotechnology Derived Trait. Consultancy Study for Crop Life International by P McDougall, Midlothian, 1-24.
Michiels, An & Koo, Bonwoo. (2008). Publish or patent?: Knowledge dissemination in agricultural biotechnology. International Food Policy Research Institute (IFPRI), IFPRI discussion papers.
Moore, Kline, and Robert Frederickson. “Strong Roots: Comparative Analysis of Patent Protection for Animals and Plants.” IP Watchdog: Patents & Patent Law, 3 Aug. 2020, www.ipwatchdog.com/2020/08/05/strong-roots-comparative-analysis-patent-protection-animals-plants/id=123649/.
Nee, Patrick F. (2005). Four intractable problems that biotechnology can help solve. Retrieved October 12, 2020, from https://www.weforum.org/agenda/2016/06/four-problems-that-biotechnology-can-help-solve/
New Developments in Biotechnology. (1987). United States: Congress of the U.S., Office of Technology Assessment.
Pardey P, Koo B, Drew J, Horwich J, Nottenburg C. The evolving landscape of plant varietal rights in the United States, 1930-2008. Nat Biotechnol. 2013;31(1):25-29. doi:10.1038/nbt.2467
Raidt, J. (2014, July 09). Patents and Biotechnology. Retrieved October 12, 2020, from https://www.uschamberfoundation.org/patents-and-biotechnology
Shear R. H. (2014). Patentability of self-replicating technologies. Cold Spring Harbor perspectives in medicine, 5(1), a021071. https://doi.org/10.1101/cshperspect.a021071
“The Importance of Patents in Biotechnology: GW Online.” George Washington University Online Degrees, 7 July 2020, healthcaremba.gwu.edu/blog/why-patents-matter-in-biotech/.
Van Overwalle, Geertrui, Patent Protection for Plants: A Comparison of American and European Approaches (1999). IDEA-Journal of Law and Technology, pp. 143-194, 1999, Available at SSRN: https://ssrn.com/abstract=1718614
Williams, S. B., Jr,, “Utility Product Patent Protection for Plant Wrieties,” Trends in Biotechnolqgy 4(2):33-39, 1986. Wochok, 2.